Success via the collaborative process comes down to determining what you really want (establishing your goals), determining what you are willing to do to achieve those goals (deciding what to commit to), and then deciding how to go about achieving your goals (crafting a strategy).
Setting and Prioritizing Goals and Interests
Do you know what you want -- what you really want -- out of this divorce? At this point, you might be thinking, "I just want this divorce to be over," "I just want custody of my children," or "I just want to survive financially." While these are all good starting points, we encourage you to delve more deeply. Because some of the daily details of your divorce (such as how a particular bill will get paid this month) can have a greater sense of urgency than others, it is easy to fall into a pattern of putting all your energy there. Remembering that big-picture concerns, such as the stability of your children and your long-term financial security, are really your most important goals will help you focus your time and resources on the issues that will have the greatest impact on your life in the years ahead.
Also, if you and your spouse each spend time identifying your big-picture goals at the outset, you will be likely to see that you share many common interests and concerns. Identifying shared goals will play an important role in helping you achieve your best possible outcome.
Thinking About What You Truly Want
Start by thinking about what truly matters to you, more than anything else, regardless of whether you think it relates to the divorce. You can then think about which of these broader goals or interests you want to achieve through the divorce process.
It's entirely possible that putting your marriage back together is one of your goals. This is understandable, even natural, particularly if you did not initiate the divorce. But for the purposes of figuring out what you want from your divorce, it's essential to assume that the divorce is going to happen. Focus on goals that relate to how you will live your life afterward.
What do you think will matter to you ten or 20 years from now? Thinking in these terms will help you separate your immediate, short-term goals (making sure your spouse pays the mortgage this month) from critical, long-term goals that seem too far in the future to wrap your head around (such as making sure your children continue to have a meaningful relationship with both parents).
Robert H. Mnookin, director of the Harvard Negotiation Research Project, a key exponent of innovative problem-solving techniques, reminds us in his book, Beyond Winning (The Belknap Press of Harvard University Press, Cambridge, MA, 2000), that your lawyer's goal is to focus on helping you understand your priorities and interests to enhance the problem-solving around the four-way table.
Knowing the Difference between Interest and Positions
John's attorney: What is the main thing you want to achieve in your divorce?
In the example above, John's interest is having significant time with his children. Because he believed it was necessary to call it "joint custody", he automatically stated that position rather than think about how he might still get what he wants (maintain his interest, time with his children) regardless of the label.
John's situation is a common one, in which parents in the midst of a divorce often start by saying they want a particular type of custody (joint physical, sole physical, and so on) based on a limited understanding of what those labels actually mean. When asked why they feel so strongly about a particular label (position), parents generally identify their underlying interest (wanting a particular amount of time with the children, wanting a particular amount of support, wanting the children to remain in the state, and so on), which locks the other spouse into a position of pushing for a different custody label. As a result, emotions can flare and negotiations can stall unnecessarily. However, if the couple is allowed to explore their underlying interests without the verbiage of legal labels they rarely understand, there's a much greater chance of both getting what they want. They can then come up with a label they can both live with.
Differences between positions and interests also occur when parties are trying to reach agreements on financial issues. Consider the situation involving Sue and Bob:
Sue and Bob
When Sue and Bob finally decided to end their 12-year marriage, their main concern was the well being of their two children, Daniel, age eight, and Emily, age three. During the marriage, they'd both agreed that it would be better for the children if Sue stayed at home until Emily was in first grade. Now that they were getting divorced, it was unclear whether they were going to be able to afford for Sue to stay at home.
Determined to make this a priority, Sue went over her expenses with her sister and found a way to reduce her household expenses to $4,000 per month. However, she concluded there simply was no way to reduce her expenses below that point, and she felt she simply needed Bob to understand that $4,000 per month was her "bottom line". She discussed this position with her attorney.
Sue's attorney: Let's talk about what you want in terms of support.
This example, like the first one, is a much-simplified version of a very common scenario. Sue's position was that she needed $4,000 per month. However, her goal or interest was in being able to stay home with Emily. While Bob also had an interest in having Sue stay home with Emily for those two years, he could not agree with her position of needing $4,000 per month because that would mean he wouldn't have been able to meet his living expenses. Once they shifted away from positions, it was easier for the couple and their attorneys to identify ways in which they could achieve their common interest.
The interests versus positions, dilemma is by no means limited to child custody and support-related issues. In looking at your financial situation, for example, you may have calculated a bottom-line dollar amount that you arrived at mathematically in a particular way (in this case, monthly payments). If your spouse uses the same approach and arrives at a different bottom line, you'll be stuck in different positions, feeling as if one of you will have to lose in order for the other to win. Shifting the discussion to focus on your interests, rather than your positions, helps to cultivate a greater understanding of what's important to each of you, and it increases the chances that both your needs will be met.
Other common positions we often hear from our clients:
So what makes these statements positions instead of interests?
Prioritizing Your Goals
There are many ways that you can choose to prioritize your goals:
By defining and prioritizing your goals and interests, you've taken a major step toward achieving a successful resolution of you divorce issues. Once you put your list together, keep a written copy in a place where you can refer to it regularly.
This article was excerpted with permission from The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs, and Happier Kids -- Without Going to Court by Stuart G. Webb and Ronald D. Ouskey (Plume Books, 2007). Webb, a family-law attorney in Minneapolis, invented Collaborative Divorce in 1990 and has practiced exclusively in the collaborative method ever since. Ouskey is a frequent speaker and writer on collaborative practice (in which he is a pioneer) and also practices in Minnesota.